If I own my house with my wife and I die will I need to have a probate in order for my wife to sell it?

If you and your wife owned the property as tenants by the entirety or as joint tenants then upon the death of one, the title will automatically pass to the other spouse. If you own the property as tenants in common however, the interest of the deceased spouse would then pass to whoever the spouse left it to in their will or if he or, she did not have a will, to his or her heirs which would include you and your spouses children. Today it is as common as not to have couples who have previously been married or have had children with others so that complicates things to a certain extent because one spouse may wish to have the interest in the property benefit his or her children after the death of the other spouse. However it is the last spouse who gets to say where the value of the house will go. So it does take some thought and planning in order to ensure that whatever assets a couple may have will be left to the people they want to get those assets. If a property is held as joint tenants or as tenants by the entirety you need to clear the title by recording a death certificate with the registry of deeds and an affidavit that no Massachusetts estate tax filing was required as a result of the death.

If you have questions about this or any other real estate matter, please contact Tom Bennett at (617) 531-6574 or tvb@barronstad.com.